Matye and conceyveth, as his Counsell advise hym, that yt wyll prejudice hym in his frehoulde, havinge his office for terme of his lyfe by his Matys letters patent. The Controller hath a kynde of relation to the same office, and can not well be severed the one from the other. The poore Sealer and Chaffewaxe, and ther dependantes, are afrayed of they know not what, suspecting that this innovation, which they understande not, can not be for ther good, but lykely to ende to ther harme, whatsoever is pretended. And these poore men, whose labour and paynes are greatest, deserue moost to be pytyed & relieved, and so yt is lykely that some upon pretence of right, and some from necessitye, wyll move more discontentement & clamour then they can stoppe. "But leavinge these to theym selues, I must lett your Lordship know playnelye that yf I be pressed to deliver myne opinion, I can not gyve any furtherance to the sute. For where the constitution & frame of Hanaper hath contynued setled as yt is, I know not how many hundred years, this newe projecte wyll make such a breach and rupture in yt as I can not foresee yt, and your Lp. in your wysedome can not but know that all innovations be dangerous, and yt was, upon great reason, observed and sayed longe agoe, that ipsa mutatio consuetudinis etiam quæ adjuvat utilitate novitate perturbat. Such perturbations, by a newe projecte, after so many hundred yeares quyette, I woulde be sory to see in this place in my tyme, which can not be, and I desire not to be, longe. So, recommending the further consideration thereof to your wysedom, I rest "Your Lps. very lovinge frende, "assured and redy at your command, “T. ELLESMERE, C."* In the case of the Countess of Shrewsbury, brought before the Privy Council, for being concerned in the marriage of the King's cousin-german, the Lady Arabella [A. D. 1612.] Stuart, without the King's consent, the Lord Chancellor laid it down for law, that this was a great misdemeanour, and that the defendant, though a Peeress, by refusing to answer on oath the questions put to her respecting it, ought to be fined 20, 000/† The right of the reigning Sovereign to regulate the marriages of all members of the royal family was then enforced by the power of arbitrary fine and imprisonment; and when this power was gone, the right was found to be without any remedy till the passing of the royal marriage act, in the reign of George III. Sir As a specimen of the mode of proceeding in the Star Chamber, while Lord Ellesmere presided there, I will give a [A. D. 1615.] short abstract of the famous "Case of Duels." Francis Bacon, Attorney General, filed an information against William Priest for writing and sending a challenge, and against Richard Wright for carrying it, although it had been refused. * Egerton MSS. † 2 St. Tr. 770. The case was very clear, and not attended with any circumstances of aggravation: yet, to check the practice of duelling, which had then increased in a most alarming manner, the trial occupied a tedious length of time, and was conducted with great solemnity. After a most elaborate opening from Mr. Attorney, he called his proofs, and the defendants confessed their guilt. Still Lord Coke was called upon by the Chancellor to lay down the law, that "to send or carry a challenge is a misdemeanour, though there be no duel." Then the Lord Chancellor pronounced sentence, "that both defendants be committed to Fleet; Priest to pay a fine of 500l., and Wright of 500 marks; that at the next Surrey assizes they should publicly, in the face of the Court, the Judges sitting, acknowledge their offence against God, the King, and the laws; that the sentence should be openly read and published before the Judges on all the circuits; any, lastly, that the Lord Chief Justice Coke should report the case for public instruction.”* It was a sore disappointment to the Lord Chancellor that he was prevented by illness from being present in the Star Chamber at the hearing of the case of Oliver St. John, prosecuted by Mr. Attorney General Bacon in the Star Chamber, for denying the legality of "Benevolences." The hearing had been put off to accommodate him, and he had expressed a strong hope to be able to attend, "and it were to be his last work to conclude his services, and express his affection towards his Majesty." However, he took occasion to express his approbation of the sentence," that the defendant should pay a fine of 5000l., and be imprisoned during the King's pleasure."† Though not chargeable with counselling acts of wanton cruelty, he always supported the King in all his pretensions to arbitrary power, never in a single instance checking the excesses of prerogative;—unlike his great contemporary, Lord Coke, who was redeemed from many professional and political sins, not only by acting the part of a patriot when turned out of office and persecuted by the existing administration, but who even when Chief Justice-holding at the pleasure of the Crown,-with the Great Seal within his reach,-stepped forward on various occasions as the champion of the laws and constitution of his country. The High Commission Court, established in the reign of Henry VIII. on the separation from Rome as a substitute for the papal jurisdiction, had been made an instrument of more odious vexation than the Star Chamber itself. The Lord Chancellor stood up for its legality, and its power to fine and imprison; but Coke refused to sit upon it, denying that it had any such authority, either by the common law or act of parliament, and the Chancellor was obliged to excuse his absence from its meetings * St Tr. 1034. † Ibid. 899. 12 Rep. 87. In the next reign this Court became still more tyrannical when directed by Laud against the Puritans, but it was abolished by 16 Car. 1. c. 11. So James arrogated to himself the power of issuing proclamations, not merely to enforce, but to alter the law—not limiting this prerogative to any particular subject, and merely taking this distinction between a proclamation and an act of parliament,-that the former is in force only during the life of the Sovereign who issues it, whereas the latter is of perpetual obligation. He had accordingly issued (amongst others) proclamations against erecting any new buildings in or about London, and prohibiting the making of starch from wheat. The legality of these coming in question, the Judges were summoned before the Council with a view to obtain an opinion that they were binding on all the King's subjects. Coke at first evaded the question, expressed doubts, and wished to have farther time to consider. The Lord Chancellor said, "that every precedent must have a first commencement, and that he would advise the Judges to maintain the power and prerogative of the King: and in cases in which there is no authority and precedent, to leave it to the King to order it according to his wisdom and the good of his subjects, for otherwise the King would be no more than the Duke of Venice." Coke answered, "True it is that every precedent hath a commencement; but where authority and precedent are wanting, there is need of great consideration before any thing of novelty is established, and to provide that this is not against the law of the land; for the King cannot change any part of the common law, nor create any offence by his proclamation, which was not an offence before without parliament; but at this time I only desire to have a time for consideration and conference with my brothers, for deliberandum est diu quod statuendum est semel." Being taunted with having himself decided cases in the Star Chamber upon the proclamation against building, he said, “ Melius est recurere quam male curiere— it is better to recede than to persevere in evil. Indictments conclude contra leges et statuta, but I never heard an indictment conclude contra regiam proclamationem.* Time was given, and an unfavourable answer returned, which saved us from the uncertainty which, to this day, prevails in France, even under the Orleans dynasty, as to what may be done by royal ordonnance, and what can be done only by an act of the legislature.* Lord Coke acquired great popularity by these proofs of spirit and independence; and the Government, not then [A. D. 1616.] thinking it prudent to cashier him, he fondly conceived the notion that, on account of his reputation for learning and integrity, he never could be in jeopardy. The insolence of his nature in consequence broke out against the Chancellor, who had suffered some humiliation from such controversies, and who 12 Rep. 74.-Written in 1845.-While this sheet is passing through the press, the Orleans dynasty is swept away-and a republic is substituted-which may perish before the printing of this volume is completed.-March 14, 1848. was now supposed to be dying. The Chief Justice deemed this a fit opportunity to revive the dispute between the Courts of common law and equity,-denying that the Chancellor had any right to interfere by injunction with an action in its progress,—and insisting that the suing out of a subpœna in Chancery, to examine the final judgment of a court of common law, was an offence which subjected all concerned to the penalties of a premunire. He now boldly pronounced judgment in a case in which the Chancellor had granted an injunction to stay proceedings*; he bailed and afterwards discharged a person who had been committed by the Lord Chancellor for breach of an injunction against suing out execution on a judgment; and in another case‡, he got Justice Dodderidge, a puisne Judge of the King's Bench, to express a strong opinion, along with him, that the interposition of equity in actions at law was illegal. Still the Chancellor continued to exercise his jurisdiction as before; and in a case where a judgment had been fraudulently obtained in the Court of King's Bench, he pronounced a decree to set it aside, and granted a perpetual injunction against execution. The verdict had been gained in this action by decoying away the defendant's witness, who could have proved payment of the alleged debt, and making the Judge believe he was dying. During the trial, this witness was carried to an adjoining tavern, and a bottle of sack was ordered for him. When he had put this to his mouth, the fabricator of the trick returned to Court, and arrived there at the moment when the witness was called. The Judge was asked to wait a few minutes, but the cunning knave swore "that delay would be vain, for that he had just left the witness in such a state, that if he were to continue in it a quarter of an hour longer, he would be a dead man." Coke, (we must hope, unconscious of the deceit which had been practised) sent for the attorney for the plaintiff at law, and recommended him to prefer an indictment for a premunire against the party who had filed the bill in Chancery, his counsel and solicitor. In another case of the same nature, he gave the like advice; with a recommendation that the Master in Chancery, who had been assessor to the Chancellor when the order was made, should be included in the indictment. In charging the Grand Jury in Hilary term, 1616, Mr. Justice Crook, on the suggestion of the Chief Justice, for the first time that such a matter had been mentioned to any inquest, gave them in charge "to inquire of all such persons as questioned judgments at law, by bill or petition, in the Court of Chancery." I now copy a paper, indorsed in the handwriting of Lord Ellesmere : "Prooffes of the proceedings, the last daye of Hillary Terme: Glenvill, informing the Lord Coke that the Jury wold not finde the bills of Premunire, the Lord Coke sent for the Jury, yet protested he knewe nothing of the matter. "The Jury, for the waightines of the case desired further tyme * Heath v. Ridley. The King v. Dr. Gouge. † Courtenay v. Glanvil. and counsill, though at theire owne charge; but both denied, by the Lord Coke affirming that the case was plaine. "The Lord Coke, perceiving the Jury were inclined not to find the bills, they alleadging that they were promised better evidence then the oath of the parties, and that they were not satisfied that the judgement was dulye gotten, being obtained out of Terme, he stood upp and said to them, ' Have you not seen copies of the proceedinges in Chancery? Have not Allen and Glanvill made oath for the King that the same are true? Is not a party robbed a good witnes for the King against a theefe, and is there not a judgment in the case?' "At the Jurors' second comeing, to the Barre, the Lord Coke said unto them, that yf they wold not find the bills, he wolde comitt them, and said that he weld sitt by it untill the busines were done, and willed them to goe together againe. After which, a Tipstaff attending that Court came into the private room where the Jury were conferring touching those indicitments, and told them the Lord Coke was angrye they staid soe long, and bade them feare nothing, the Lord Chancellor was dead. "At the Jurors' third comeing, the Lord Coke caused them to be called by the poll, and perceiving that 17 of the 19 were agreed to return Ignoramus, he seemed to be much offended, and then said they had been instructed and tampered withall, and asked Glanvill and Allen to prepare themselves against the next Terme, when he, wold have a more sufficient Jury, and evidence given openly at the Barr. 66 Note, that upon the Lord Coke's threatening wordes one of the Jury formerly agreed with the rest fell from them, saying he found the bills, Lord Coke said, 'I think theis Bills wilbe found anon.' 6 Upon a motion made there that day between Goodwin and Goldsmith concerning a judgment in that Court, the Lord Coke said openly to the lawyers, Take it for a warning, whosoever shall putt his hand to a bill in any English Court after a judgement at lawe, wee will foreclose hym for ever speaking more in this Court. I give you a faire warning to preserve you from a greater mischief. Some must be made example, and on whome it lighteth it will fall heavy. Wee must looke about us, or the common law of England wilbe overthrowne.' And said further, that the Judges shold have little to doe at the assizes by reason the light of the lawe was lyke to be obscured, and therefore, since the said case then moved was after judgment, he willed the party to preferr an indictment of præmunire. 66 Note, the Lord Coke said the Judges of that Court were the superintendents of the realm."* * Unpublished MS. in possession of Lord Francis Egerton. In the margin there is a list of twelve witnesses by whom this statement is to be proved with an intimation that "these thinges can be further proved by sundry other witnesses not yet examined, yf it be required." |